THE STATE OF PRETRIAL

JUSTICE IN AMERICA
NOVEMBER 2017

20171018-01
A Message from Cherise Fanno Burdeen

I have been working to advance pretrial justice for
ten years—a few decades shy of what many, like
my Pretrial Justice Institute colleagues John Clark Table of Contents
and Tim Murray, have put in. However, even
readers who are relatively new to this work know The State of
that we are at a special moment. Pretrial Justice .................3
Half a century after the Manhattan Bail project first
showed that money bail is unnecessary to assure court Background....................4
appearance, there is unprecedented, growing demand
for change; far-reaching litigation is compelling jurisdictions Methodology..................6
to abruptly alter their practices; and local, state, and national
lawmakers are honing plans for comprehensive reform. An Update on
3DaysCount Sites.............9
Before we all begin counting our proverbial chickens, however,
it would be prudent to step back and ground our expectations in Scores and
some facts. The State of Pretrial Justice in America is our attempt Grading..........................11
to capture, using basic indicators, current pretrial practice in all
fifty states, as well as in the aggregate. It is a baseline against Summary of
which we can gauge progress. Findings.........................13
Like you, I am eager to see a new national standard of pretrial
justice that does not discriminate based on wealth or race; or How to Use
undermine individual and community safety; or squander public These Results...................15
resources; or contribute to the problem of mass incarceration, but
actively contributes to its elimination instead. But getting there, Appendix........................16
even from where we are now, won’t be easy. Even if the money
bond culture in every state were to change tomorrow, there would
still be the vexing challenges of implementing legal and evidence-
based practices, ensuring process and outcome transparency,
and sustaining advancements when political winds change.

The State of Pretrial Justice in America is offered as a reflection
of both how far we’ve come and also how far we still have to go.
My hope is that everyone—the public, the media, and stakeholders
alike—will be able to use it to help move us closer to a system that
is fairer and safer for us all.

—Cherise Fanno Burdeen
CEO, Pretrial Justice Institute

20171018-01
3

The State of Pretrial Justice unprecedented interest emerges from a growing

T
awareness that existing pretrial operations lead to
he past five years have witnessed a unnecessary detention of poor and working class
remarkable growth in support for reforming people—disproportionately people of color—while
our nation’s pretrial justice system (the those with money are able to go free with little or
portion of criminal justice practice that begins no supervision, regardless of any danger they may
with a person’s first contact with law enforcement present.1 Current pretrial justice practice is, in
and ends once any resulting charges are resolved, short, unfair, unsafe, a waste of public resources,
usually through a plea, a trial, or dismissal). This and a significant contributor to the nation’s widely
recognized problem of mass incarceration.2

There is, of course, no single pretrial justice system
Washington, DC in the United States. The structure of criminal
justice in this country allows for significant
In Washington, DC, 92% of people who are arrested
variation from state to state, and even from county
are released pretrial and no one is detained because of
to county. This decentralization has its benefits.
an inability to pay. These results are largely due to the
District of Columbia Pretrial Services Agency (PSA), But it presents challenges to those who would seek
one of the pioneering institutions of its kind in the systemic improvements.
field. Begun as the D.C. Bail Project in 1963 with
a grant from the Ford Foundation, this agency The Pretrial Justice Institute (PJI) developed
operates 24 hours a day, promoting court this report card to minimize those challenges. Its
appearance and public safety through the foundational premise is that American pretrial
use of public safety assessments and practice—in any state or jurisdiction—should be
graduated supervision levels. Eighty- able to maximize liberty among people who are
nine percent (89%) of arrested people entitled to the presumption of innocence, while
released before trial were not arrested for also protecting public safety and ensuring effective
new charges while their cases were being court operations.3 This is, after all, an aspiration
adjudicated; ninety-eight percent (98%) were traced to our founding fathers and beyond, which
not rearrested on a crime of violence while in the
former Chief Justice of the United
community pending trial.
States William Rehnquist
Many who have looked at PSA have noticed that the eloquently summarized when “Too
program has a significant budget and questioned he wrote, “In our society, many people
whether such a program can be replicated elsewhere. liberty is the norm, in the pretrial phase
However, PSA operates under conditions that would and detention prior to are locked up for days,
not necessarily apply to most jurisdictions. As an trial or without trial is weeks, and even months,
independent federal agency, PSA has certain fixed
the carefully limited when, according to both
and stand-alone costs, such administrative support
functions, finance, and information technology, that
exception.”4 law and research, they
could, in a state, be housed within another agency. should be released”
The analysis presented
PSA’s budget also includes a robust drug specimen
here finds, however, that
collection program and drug testing laboratory,
which also are not a part of a typical pretrial services the state of pretrial justice in
agency’s budget. States will find that many of these America falls far short of Chief
features are already operational within their state. Justice Rehnquist’s vision. Too many people in
the pretrial phase are locked up for days, weeks,
and even months, when, according to both law and
research, they should be released.
4

New Jersey, which implemented comprehensive
reforms earlier this year that have already led New Jersey
to improved outcomes, is the only state to have In 2014, under the urging of Governor Chris Christie,
received an A grade in our analysis. The remaining New Jersey passed legislation that dramatically
grade distribution, as illustrated in the table on changed pretrial justice in the state. First, it mandated
page 11, includes eight Bs, ten Cs, 13 Ds, and 17 the creation of pretrial services agencies statewide to
Fs. One state, Delaware, received an Incomplete conduct pretrial assessments and make release
(I) grade because one of the three indicators—rate recommendations to the court. The new system
of pretrial detention—was unavailable. requires courts to use money bail only as a
last resort, when they can articulate why
The silver lining is that these results would other release conditions are insufficient
have been far worse had this report card been to assure court appearance and public
produced in 2007 rather than 2017. Viewed this safety. Second, voters approved a
constitutional amendment allowing for
way, the current grade distribution may be seen
pretrial detention of individuals the court
as encouraging. We are in the midst of what has
chooses to not release before trial.
been called the “third generation” of bail reform, Before the amendment, almost
spurred by a demand for practices that are shown everyone who was arrested in the
to be effective and fair.5 At PJI, we are hopeful that state was afforded an opportunity for
the public, the media, elected officials, and system release.
stakeholders in every state across the nation will
use this report to educate, advocate, litigate, and The state spent two years following
adoption of the new laws preparing for
legislate a new national standard of pretrial justice.
implementation, which occurred in January 2017.
The new system has, so far, been phenomenal. The
Background
number of people held in New Jersey jails awaiting
The first wave of bail reform came about in the trial dropped by 15% in the first six months. Courts
1950s and 60s, when the U.S. Supreme Court held had begun detaining fewer individuals prior to
the new laws coming into effect and the number
that conditions of release must be individualized,6
of unconvicted people held in jail dropped by
and the Vera Foundation demonstrated that more than a third (34.1%) between mid-2015 and
individuals released on recognizance—that is, mid-2017. At the same time, public safety was
without money bond—achieve high rates of improved. Both violent crime and overall crime
appearance in court. This spurred the use of rates dropped statewide in the first nine months
release on recognizance, nonfinancial conditions, of 2017, compared to the same period in 2016.1
and pretrial supervision. The second generation
focused on the idea of public safety, when the One hundred percent of New Jersey’s population now
Supreme Court upheld the use of preventive resides in a county that employs validated evidence-
detention with due process protections in 1987.7 As based pretrial assessment, and secured money bail
has been functionally eliminated. Since the law went
a result, the court acknowledged that there is not
into effect, fewer than thirty individuals have been
a right to bail in all cases, and the original purpose required to pay money prior prior to release.
of setting bail—court appearance—was expanded
to include considerations of public safety. These For an insider’s perspective on New Jersey’s recent
two goals are the only purposes that conditions of changes, see Improving Pretrial Justice in New Jersey.
release may address, under the Constitution. 1. New Jersey State Police, Uniform Crime Report, January-September
2017, generated October 13, 2017. http://www.njsp.org/ucr/pdf/
Despite these changes, the use of financial bond current/20171013_crimetrend.pdf
has been the dominant condition of release from
5

the late 1990s until today. During that period, STATE TO WATCH
95% of the growth in jail populations has
been due to the increase in the unconvicted
Alaska
population.8 The third generation of change After 10 years of dramatic growth
has come about due to the continued pervasive in the jail and prison populations,
practice of detaining individuals before including an 81% increase in the number of people held
trial who should be released. Today, nearly pretrial, Governor Bill Walker signed SB 91, introducing a
two-thirds of people in jails have a pretrial series of criminal justice improvements, including evidence-
status; many are charged with low-level, based pretrial practices, that are designed to improve
public safety and reduce incarceration. Law enforcement
nonviolent offenses and are detained because
officers now have expanded discretion to issue citations in
of their inability to pay the set bail amount. lieu of arrest, and a newly created pretrial services program
will conduct evidenced-based assessments and make
This most recent wave of reform emphasizes
recommendations to the court. Part of the challenge for
legal and evidence-based practices. In place Alaska will be implementing effective pretrial services in its
of “gut instinct” and incomplete information, many remote rural areas.
system stakeholders are finding ways to
make better and more-informed decisions Although the state law contained a presumption in favor of
using evidence-based pretrial assessment. release on recognizance, studies found that courts departed
Properly designed and validated, evidence- from this presumption in the vast majority of cases, and that
secured money bond was a significant contributor to the
based pretrial assessment provides statistical
length of pretrial stays. The new law seeks to correct this
proof that the vast majority of arrested
with mandatory release on recognizance requirements for
people can be released on recognizance. It certain cases.
also reveals which men and women might
benefit from limited conditions and support
to increase their likelihood of pretrial success, STATE TO WATCH
as well as the small number who may not be
suitable for pretrial release (legal standards
Arizona
require a number of procedural steps to The Arizona Supreme Court took the lead in
determine who may be detained before trial, changing pretrial practices when it established
including early defense representation and a task force to examine fines, fees, and pretrial release
opportunity for immediate appeal). In some practices in 2016. The work of the task force has resulted
jurisdictions, lawsuits are also forcing change in, among other changes, new court rules that prohibit
by challenging practices that fail to look at pretrial incarceration based solely on an individual’s
inability to pay, require that when money bond is deemed
individual circumstances and base detention
a necessary condition of release that it is “the least onerous”
on access to money. In several states, state type of money bond, and also permit the use of preventive
chief justices have led the way in changing detention. The legislature is introducing bills to address other
pretrial release practices, usually through the recommendations from the task force, including: allowing
form of commissions, judicial training, and community restitution in lieu of payment; reclassifying certain
court rule changes. misdemeanor offenses as civil offenses; and establishing a
statewide pretrial services program. The efforts in Arizona
Today it is the rare state that is not considering are bolstered by Pima County’s work as a Safety and Justice
or has not recently implemented some Challenge site to reduce the average daily jail population,
adjustment to its pretrial justice system. The and the statewide rollout of a pretrial assessment tool
challenge is that these activities must result through the Laura and John Arnold Foundation.
in real change, whether spurred by legislation
6

or lawsuits. Experience has shown 1. Rate of unconvicted people in local jails,
that it is not enough to have
“Establishing a good law on the books; a 2. Percentage of people living in a jurisdiction
this baseline will successful transformation that uses evidence-based pretrial assessment to
enable each state of a pretrial system requires inform pretrial decisions, and
to set goals and
information gathering, 3. Percent of a state’s population living in a
demonstrate
education, and stakeholder jurisdiction that has functionally eliminated
progress.”
buy-in. The ability to track and secured money bail.
modify practices is also critical, as
the overuse of detention and excessive Rate of unconvicted people in local jails.
conditioning of release can confound the best Nearly two-thirds (63%) of the people in U.S. jails
efforts of any system. are unconvicted individuals. In 1990, that figure
was just slightly more than half (51%).9
This report provides a snapshot in time from
which we can begin to measure change. This indicator focuses, however, on the pretrial
Establishing this baseline will enable each detention rate within the overall population. The
state to set goals and demonstrate progress. rate used is the number of unconvicted people in
jails per 10,000 adult residents.

Methodology
STATE TO WATCH
There are any number of ways to gauge pretrial California
justice in America. This report focuses on the
biggest flaws affecting most of the nation’s pretrial The three major branches of the nation’s
systems and the areas where improvement can most populous state are moving forward
have the greatest positive impact. An explanation on modernizing pretrial practices. State
Senator Bob Hertzberg and Assemblyman Rob Bonta
of each of the measures appears below, along with
introduced companion bills to establish the use of
information on how the measure was sourced. pretrial assessments and pretrial services, and a work
These are followed by a brief discussion of the group studying the impact of the bail system on people
measures’ limitations and an explanation of how unable to afford bond. In October 2017 the Pretrial
the collected information was converted into Detention Reform Workgroup, appointed by Chief
grades. Justice Tani Cantil-Sakauye, recommended replacing
the current monetary bail system with a robust system of
The Measures pretrial assessment and supervision. In the meantime,
several localities have moved forward with initiatives of
Local pretrial practice can vary from jurisdiction their own, including the implementation of assessment
to jurisdiction. Yet every local pretrial system tools, the increased presence of defense attorneys,
operates within a structure—based on elements and the diversion of people with behavioral health
that include a state’s constitution, statutes, case issues out of the criminal justice system. In 2016, the
law, and tradition—that is unique to the state Santa Clara Board of Supervisors voted to implement
evidence-based pretrial practices, citing studies that
where it is located. For this reason, this analysis
the money bail system was keeping low-income people
focuses on states as the basic unit and collected unnecessarily locked up.
three fundamental measures for each:
7

Data for this measure was collected STATE TO WATCH
primarily through the Bureau of Justice Indiana
Statistics (BJS) Census of Jails series—
using the most recent year available, 2013.10 Progress in Indiana is supported in part by the state’s
A handful of states did not submit data to participation in the National Institute of Corrections’
BJS, but we were able to locate similar (NIC) Evidence-Based Decision Making Initiative
(EBDM). In 2016, the Indiana Supreme Court
numbers from other sources.11 The only
adopted Indiana Criminal Rule 26 encouraging the use of pretrial
exception is the state of Delaware. Because risk assessments and the non-financial release of arrestees who
we could not find comparable data for this do not present a substantial risk of flight or danger to themselves
state, it received an “Incomplete” (I) rather or others. NIC is working with 11 Indiana counties that are
than a letter grade. piloting evidence-based pretrial practices in accordance with
CR 26. The pilot counties are using the Indiana Risk Assessment
Percent of state’s population living System Pretrial Assessment Tool (IRAS-PAT) to inform release and
in a jurisdiction using evidence- supervision conditions and provide—or are working to provide—
based pretrial assessment. In most defense counsel at initial hearings. The EBDM state policy team is
of America, only two considerations overseeing a process and outcome evaluation of the pretrial pilot
may legally influence the pretrial release project that will include a validation study of the IRAS-PAT.
decision: whether the accused person,
if released, is likely to appear in court as
expected, and whether he or she would
present an unmanageable threat to public STATE TO WATCH
safety during the pretrial period if released. Maryland
An evidence-based pretrial assessment
measures these two considerations for In the fall of 2016, two documents helped
each person who comes before the court shape the dialogue around pretrial
detention and release in Maryland. The first was an advisory
using a “tool” (usually a questionnaire,
letter from state Attorney General Brian Frosh indicating that
form, or database) that collects relevant the practice of locking up individuals as a consequence of
information and generates an objective their inability to pay was likely to be found unconstitutional.
score based on a statistical analysis of the The second, a report from the Maryland Office of the Public
performance of previously arrested people Defender, quantified concerns around the money-based bail
with similar profiles. system, showing that tens of thousands of Marylanders were
improperly incarcerated because of money bail and that for-
The use of evidence-based pretrial profit bail bonds drained millions of dollars from the state’s
assessment is an important advance poorest communities.
over systems that allow irrelevant, or
even biased factors to influence court As a result, Maryland changed its court rules to create a
presumption in favor of release on recognizance, require
decisions. Ideally, evidence-based pretrial
the “least onerous” conditions of release, and require an
assessment should be locally validated— individualized inquiry into a person’s specific circumstances,
meaning that the tool has been tested to including ability to meet financial conditions of release. The
confirm that it has predictive ability within challenge now is to provide support for a new release model, in
the jurisdiction where it is being used. the form of evidence-based pretrial assessments that provide
better information on which people can be released under
Data for this measure were compiled using what conditions, and pretrial services.
a combination of institutional knowledge
and contacts with national pretrial
8

assessment leaders and local stakeholders. STATE TO WATCH
Only those states and counties using validated New Mexico
evidence-based pretrial assessment tools were
given credit on this measurement. In 2016, voters in New Mexico overwhelmingly
approved a constitutional amendment to
For more information about pretrial assessment prevent the pretrial detention of people based on an
tools, see Questions About Pretrial Assessment. inability to pay, while also allowing preventive detention
of people charged with certain serious crimes. The
Percent of state’s population living in measure had bipartisan support, and backing from Chief
a jurisdiction that has functionally Justice Charles Daniels. Before the measure took effect,
eliminated secured money bail. In many New Mexico had one of the highest pretrial detention
ways, the final measure—functional elimination rates in the nation— 341 per 100,000 residents.
of secured money bail—is the simplest and also
To guide criminal courts on this measure, the New Mexico
the most crucial to achieving truly safe, fair, Supreme Court issued new court rules, developed with
and effective pretrial justice. It is the simplest the input of judges, prosecutors, defense attorneys, bail
because, to date, only one state, New Jersey, has bondsmen, legislators, and detention officials, which
achieved this goal. (Washington, DC, which has took effect July 1 of this year. A group of bail bond agents
operated a model pretrial system without money and state legislators have brought suit against the rules; in
bail for more than twenty years, was not included August, a federal judge denied a request to stop judges
in this analysis.12) from using the new court rules.

As long as pretrial systems use money as a
condition of pretrial release, poor and working Mexico, for example, is on a path to implement
class people will remain behind bars while validated pretrial assessment tools in every
those who are wealthy go home, regardless court in the state, but that has yet to happen and
of their likelihood of pretrial success. This is a so is not reflected in New Mexico’s grade. An
fundamental injustice. important accompaniment to this report are the
Data for this measure were compiled profiled States to Watch, which discuss
using a combination of institutional “As several of these cases in more detail.
knowledge and contacts with long as
pretrial systems use Also, data in this report
national pretrial assessment
leaders and local stakeholders. money as a condition represent our best effort to
of pretrial release, poor collect information that is
Data Limitations and working class people current and accurate. Readers
will remain behind bars are invited to provide more
The measures presented here while those who recent or comprehensive data
reflect work that has been are wealthy go
completed, not work in progress. that may have been overlooked
home...”
This is an important distinction, and to submit corrections that
since many states are actively engaged in can help make future analysis more
improvement efforts whose results have yet to be accurate and meaningful by contacting us at
reflected in the measures used in this report. New stateofpretrial@pretrial.org.
THE STATE OF PRETRIAL JUSTICE IN AMERICA

AN UPDATE ON
3DAYSCOUNT SITES
Our nation’s justice system allows for significant variation in policy and practice at the local
level. Yet every county’s pretrial system operates within a structure established by the state.
3DaysCountTM was created to support state-level changes that facilitate safer, fairer, and more
effective local pretrial practice. This overview highlights steps our partners in 3DaysCount have
been pursuing within this framework, helping to set a new national standard of pretrial justice.

Guam Illinois
In June 2016, the U.S. territory of Guam became Illinois joined 3DaysCount with
the inaugural 3DaysCount site. Led by the Chief support from the state Supreme
Justice of the Supreme Court—with system-wide Court, the Administrative Office of
participation that included the attorney general, the Illinois Courts (AOIC), and state
the public defender, and legislators—Guam’s representative Carol Ammons.
3DaysCount team developed three specific goals: Together, the team identified three
ensure defense counsel at the earliest hearing overall 3DaysCount goals: restrict
that could result in pretrial detention, provide pretrial detention, after due process, to
universal evidence-based pretrial assessment, people who pose an unmanageable risk
and match pretrial conditions to each individual’s to public safety or of failing to appear in
assessment results. One year in, defense counsel court; provide judges with additional safe,
is now present at first appearance and a pretrial fair, and cost-effective options as alternatives
assessment is conducted for every arrested to pretrial detention; and increase public safety.
person. Recognizing a pattern of over-supervision,
the territory is currently refining its pretrial In April 2017, the Illinois supreme court issued a
supervision services and conditions, Statewide Policy Statement for Pretrial Services.
continuing to educate judges, and As Chief Justice Lloyd A. Karmeier noted, the
revising policies to comport with statement is a guide for all trial courts and
best practices. Guam has also emphasizes that “Illinois pretrial principles and
set out to improve its pretrial practices are founded upon the presumed
data collection and innocence of the accused.” In July, the court
to use the data approved the creation of the Illinois State
to understand Commission on Pretrial Practices; participants will
and shape pretrial include representatives from all three branches of
policies. government, law enforcement, public defenders,
and representatives of victims, among others.

A Campaign of the
THE STATE OF PRETRIAL JUSTICE IN AMERICA

AN UPDATE ON 3DAYSCOUNT SITES

These developments occurred within a larger This law promises to be a first step for pretrial
context that included passage of statewide reform in the state. In October, the Connecticut
legislation that, among other things, establishes Sentencing Commission sent a delegation to
a clear presumption for release on the least New Jersey to study its transformation of the bail
restrictive non-financial conditions needed to system. It also sponsored a day-long summit of
provide reasonable assurance of public safety and about 150 judges, prosecutors, defenders, law
court appearance and allows the Supreme Court enforcement, pretrial services, and other key
to implement a pretrial assessment in judicial justice system stakeholders to hear from other
districts throughout the state. Also, in Cook states that have been active in bail reform.
County (Chicago), the site of ongoing litigation
surrounding bail practices, the chief judge Washington
promulgated changes to the court rules that would Washington state
limit bond amounts to each individual’s ability to committed to 3DaysCount
pay, replacing all bond judges and renaming the in June 2017 through
Central Bond Court as the Pre-Trial Division in the its Pretrial Reform Task
process. Force. The Task Force,
which has the support
of judges from all
Connecticut levels of the state court system, has created
professionally staffed subcommittees with broad
Governor Dannel Malloy’s stakeholder representation to study and make
office signed on to the recommendations on three major areas: pretrial
3DaysCount campaign in services, pretrial assessment, and data collection.
February 2017. Within just a
few months, the Connecticut The 3DaysCount-related work in Washington
legislature passed, and the builds upon local efforts in King, Spokane, and
governor signed, a bill establishing a clear Yakima counties. Yakima County is a Smart Pretrial
presumption for non-financial release in most Demonstration site, Spokane recently developed
misdemeanor cases. Moreover, people who are its own pretrial assessment tool, and King County
in jail on financial bonds they cannot post for 14 (Seattle) is home to Law Enforcement Assisted
days must be brought before the court for a bond Diversion (LEAD), a program that helps prevent
review and the court “shall remove the financial unnecessary arrests. All of these counties are
conditions of release unless the court makes represented on the Task Force.
specific findings for why the financial conditions
are needed.”

For more information about 3DaysCount, visit pretrial.org/3DaysCount.

A Campaign of the
11

Overall Scores and Grading
The measures described above were converted into a point system that has been
translated into a standard A-to-F grading system for clarity and ease of use.
States were awarded points for each of the measures described in the first three columns below.
A bonus point was added for any state that had both 100% of its jurisdictions using evidence-based

Functional Bonus Point
Use of Validated Pretrial (for combination 100% Overall Score &
Pretrial Detention Rate Elimination of
Assessment pretrial assessment and Grade
Money Bail elimination of money bail)

<10% = 2 pts 76% to 100% = 4 pts 100% = 1 pt Yes = 1 7 pts = A

10% to 20% = 1 pt 51% to 75% = 3 pts 0% = 0 pts No = 0 5-6 pts = B

21% & up = 0 pts 26% to 50% = 2 pts 3-4 pts = C

1% to 25% = 1 pt 2 pts = D

0% = 0 pts 0-1 pts = F

Results By State

Use of Validated
Pretrial Elimination Bonus
Pretrial Grade
Detention Rate of Money Bail Point
Assessment
Alabama F
Alaska F
Arizona B
Arkansas F
California D
Colorado B
Connecticut B
Delaware – I
Florida D
Georgia F
Hawaii D
Idaho F
Illinois C
Indiana F
Iowa D
Kansas D
Kentucky B
12

Use of Validated
Pretrial Elimination Bonus
Pretrial Grade
Detention Rate of Money Bail Point
Assessment
Louisiana F
Maine D
Maryland C
Massachusetts D
Michigan C
Minnesota C
Mississippi F
Missouri F
Montana F
Nebraska F
Nevada B
New Hampshire D
New Jersey A
New Mexico D
New York C
North Carolina D
North Dakota F
Ohio C
Oklahoma F
Oregon C
Pennsylvania D
Rhode Island B
South Carolina F
South Dakota C
Tennessee F
Texas D
Utah B
Vermont D
Virginia B
Washington C
West Virginia F
Wisconsin C
Wyoming F

Pretrial Detention Rate: < 10 = ; 10 to 20 = ; 21 + =
Pretrial Assessment: 76-100% = ; 51-75% = ; 26-50% = ; 1-25% = ; 0% =
Eliminated Money Bail: 100% = ; 0% =
Bonus Point: Yes = ; No =

For detailed results, see Appendix.
13

pretrial assessment and had functionally STATE TO WATCH
eliminated the use of money bail (column
4). The points were then added to
New York
generate letter grades listed in the far The momentum to change pretrial detention
right column. practices in New York could perhaps be best
encapsulated in the recently announced long-term plan to close
Summary of Findings Riker’s Island. The infamous facility holds 80% of the city’s inmates,
most of whom have a pretrial status. Former Chief Justice Jonathan
The good news is that this analysis Lippman chaired the commission that developed the plan, and it
shows 25% of people living in the United has the support of Gov. Andrew Cuomo and New York City Mayor
States now reside in a jurisdiction Bill de Blasio. Cuomo has also made changes to pretrial practices
that uses a validated evidence-based part of his Criminal Justice Reform Act, which would include
pretrial assessment. Only four years the use of assessment tools and alternatives to detention. New
ago, this figure was calculated as closer York City is also home to several innovative pretrial programs,
including community bail funds and holistic defender programs,
to 10 percent.13 However, fewer than
and a Justice Reinvestment Initiative from the Bureau of Justice
3% of people living in this country live Assistance seeks to improve pretrial systems through data and
in a jurisdiction that has functionally process analyses across the state. The challenge for the state will
eliminated money bail. Moreover, be in finding common ground between New York City and upstate
averaging the individual scores of all fifty jurisdictions.
states generates a national score of only
2.57—which earns the United States as a
whole a D. This speaks volumes about the
need for further improvement. STATE TO WATCH
Ohio
As noted earlier, only one state, New Jersey,
received an A. This is because, in addition In Ohio, one of the states hit hardest by the opioid
epidemic, jail overcrowding has brought the need
to having relatively low rates of detention
for changes to pretrial release practices to the forefront. The
and implementing validated pretrial
County Commissioners’ Association of Ohio and the Buckeye
assessments statewide, it has functionally State Sheriffs’ Association have called for a move away from bail
eliminated money bond. New Jersey’s schedules, a practice that keeps people needlessly locked up due
efforts are discussed in more detail on to finances. An ad hoc committee formed by the Ohio Criminal
page 4. Eight states (Arizona, Colorado, Sentencing Commission has also recommended, among other
Connecticut, Kentucky, Nevada, Rhode changes, a move toward evidence-based release practices, data
Island, Utah, and Virginia) received Bs. collection and analysis of all facets of the bail and pretrial system,
Ten states earned Cs (Illinois, Maryland, and the right to counsel at initial appearance.
Michigan, Minnesota, New York, Ohio, County-based initiatives support these moves. In Lucas County,
Oregon, South Dakota, Washington, and implementation of the Laura and John Arnold Foundation Public
Wisconsin). In addition, there were 13 Ds Safety Assessment tool has resulted in an 18% reduction in the
and 17 Fs. number of people incarcerated. Cuyahoga County, with support
from the George Gund Foundation, is conducting data analysis
It is important to note that these scores of its jail populations to see if people are spending unnecessary
are based upon current practice and do time in jail. Ohio is also participating in the Stepping Up initiative,
not reflect reforms initiated but not yet which seeks to reduce the number of people with mental illnesses
fully implemented. Several states have involved in the criminal justice system.
grades that do not reflect important
14

initiatives that PJI expects, in time, will STATE TO WATCH
yield significant improvements. These Texas
include states such as Alaska and New
Mexico, both of which are profiled as Harris County (Houston) is at the center of one of the
States To Watch. nation’s largest legal challenges to money bail. A federal
judge has already granted a preliminary injunction to plaintiffs,
In five states besides New Jersey— who represent people charged with misdemeanors locked up
Arizona, Connecticut, Kentucky, Rhode because they could not post cash bail, and has ordered that all
Island, and Utah—all residents live in a people charged with misdemeanors be released within 24 hours
on personal bond if they have not already bonded out.
county that uses a validated, evidenced-
based pretrial assessment to inform Despite its reputation for “lock’em up” criminal justice, Texas is home
decisions about pretrial release and to bi-partisan efforts to emphasize prudent and legally-backed bail
detention; all of these states received practices. Groups on both sides of the political spectrum—such as
a B. In three other states—Colorado, the conservative Right on Crime initiative and liberal Texas Criminal
Nevada, and Virginia—85-89% of Justice Coalition—have found common ground on issues such as
residents live in a county using such a bail reform as a means to reducing jail populations and spending
public resources prudently. While a bipartisan bill supported by the
tool. Several other states are exploring
Texas Judicial Council to reform bail practices ultimately failed to
or are in the planning stage of statewide pass this session, Texas has enjoyed success from its other smart-on-
implementation of pretrial assessments. crime measures. Texas has its lowest crime rate since 1968, saved $2
Again, several of these states are profiled billion in new prison construction costs, and closed three prisons.
as States to Watch.

Additionally, several jurisdictions
STATE TO WATCH
are taking active measures to deflect
individuals, particularly those with Utah
behavioral health issues, away from the Following reports from the Utah Judicial Council and the
justice system and into programs that Office of the Legislative Auditor General showing that
can more adequately meet their needs. judges lacked sufficient information to make fair pretrial decisions,
LEAD (Law Enforcement-Assisted the state is now rolling out the Laura and John Arnold Foundation’s
Diversion) is a pre-booking diversion Public Safety Assessment tool to make more information available
program that moves individuals charged to judges. The new program is expected to go live in November
with low-level drug and prostitution 2017, and will be followed by a Harvard University study to see how
the program is working. After a 2015 study of Salt Lake County, the
offenses into a case management
state’s most populous jurisdiction, there are also plans to improve
treatment model. Stepping Up is a the diversion of people with behavioral health issues from the
national initiative to reduce the number criminal justice system through the Stepping Up initiative, and also
of people with mental health issues improve data collection practices.
in jails. While the results of this work
should be reflected in the detention Chief Justice Matthew Durrant has been an advocate of recognizing
the evolving abilities of the courts, stating, “One overarching
rate score, it is also worth explicitly
change that we have made in our court system over the past
acknowledging such efforts. twenty years is that rather than simply being guided by...tradition,
anecdote, or ‘gut instinct,’ we are guided by research, data, and
Beyond The Measures
evidence about what works.”1
High detention rates, limited 1. Chief Justice Matthew Durrant, 2017 State of the Judiciary (Utah), January 23, 2017.
implementation of evidence-based
15

pretrial assessments, and continued use of How to Use These Results
money bail are not just numbers. These figures
represent hundreds of thousands of people across The scoring and grades presented in this report
the country being detained even though they do are intended to be the start of a conversation, not
not present a risk to court operations or public the end. They are meant to encourage states to ask,
“Given where we are, how can we do better?”
safety. Research has also shown that keeping such
individuals locked up for as few as three days can It is important to emphasize that neither states
have dangerously destabilizing effects.14 They with high grades nor those with low grades
risk losing their homes, their jobs, and should view these results as a reason to
their families. Moreover, unnecessary “What stop improving or to not even try. Even
pretrial detention raises questions of these numbers states that earned top grades have
whether public resources are being show is that for far room to improve; those that earned
used effectively. too many people in a C, D, or F can find encouragement
too many courts in this and guidance from states that have
These numbers also represent country, the promise and already begun these critical efforts.
an erosion of the values of our protections of the justice
legal system. Pretrial detention system have not yet States may wish to turn to PJI’s
compromises the presumption materialized. ” quarterly publication, Where
of innocence, inhibits the ability of Pretrial Improvements are
people to develop a legal defense, and Happening, for insights on how and
coerces men and women to plead guilty so where to begin (or continue) this work.
they can get out of jail faster, even when they This document provides up-to-date information
may have a defensible case. It also exacerbates on activities categorized by changes in practice,
the problem of mass incarceration. For example, judiciary-led change, executive branch brand-led
people who are detained receive longer jail and change, community and grassroots-led change,
legislative change, and change through litigation.
prison sentences than similarly-situated people
The work described runs the gamut from small
who were released before trial.15
counties seeking solutions to crowded jails to
Holding such a large percentage of individuals multi-state philanthropic initiatives aimed at
on bonds they cannot post has become so creating lasting, systemic improvements.
commonplace that it is hard to appreciate that
State leaders are also encouraged to consider
many are being detained in violation of the adding their state to 3DaysCount, a nationwide
Constitution.16 As noted earlier, detention is effort to set a new national standard for pretrial
supposed to be the “carefully limited exception” to justice by working at the state level to reduce
the custom of pretrial release, occurring only with unnecessary arrests that destabilize families and
due process protections. Conditions of release are communities; replace discriminatory money
to be tailored to the individual circumstances of bail with practical, assessment-based decision-
each person, and designed to meet the goals of making; and restrict detention (after due process)
court appearance and public safety.17 What these to the small number of people who are not
numbers show is that for far too many people ordered released by the court. See An Update on
in too many courts in this country, the promise 3DaysCount Sites on page 9 for highlights of steps
and protections of the justice system have not yet currently being taken by states already associated
materialized. with 3DaysCount.
16

References
1. Questions About Pretrial Assessment. Report. Pretrial Justice Institute. October 3, 2017. www.university.pretrial.org/viewdocument/
questions-about-pretrial-assessment.
2. See, for example, a curated list of pretrial detention research at www.prisonpolicy.org/research/pretrial_detention/.
3. Timothy Schnacke, Fundamentals of Bail:  A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform,
National Institute of Corrections, 2014. 
4. U.S. V. Salerno, 481 U.S. 739 (1987).
5. Timothy Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform,
National Institute of Corrections, 2014. 18.
6. Stack v. Boyle, 342 U.S. 1 (1951).
7. United States v. Salerno, 481 U.S. 739 (1987).
8. Office of Justice Programs. Bureau of Justice Statistics. Jail Inmates at Midyear 2014. By Todd D. Minton and Zhen Zeng. NCJ 248629.
2015.
9. Jail Inmates at Midyear 2014. Minton and Zeng.
10. Office of Justice Programs. Bureau of Justice Statistics. Census of Jails 2013. Data set available at www.bjs.gov/index.
cfm?ty=dcdetail&iid=254.
11. Non-BJS sources include—Alaska: 2015 Alaska Criminal Justice Commission Justice Reinvestment Report; Connecticut: June 2013
Criminal Justice Policy & Planning Division Monthly Indicators Report from the Connecticut Statistical Analysis Center; Hawaii: State of
Hawaii Department of Public Safety 2013 Annual Report; Rhode Island: Rhode Island Department of Corrections Planning and Research
2013 Fiscal Year Annual Population Report; Vermont: Average Monthly Detained Counts for July 2013.
12. Washington, DC has characteristics similar to other major cities, not states that are more diverse in density and population. For that
reason, including its data with that of states can be misleading.
13. Developing a National Model for Pretrial Risk Assessment. Report. The Laura and John Arnold Foundation. 2013. 2.
14. Pretrial Criminal Justice Research. Report. The Laura and John Arnold Foundation. 2013.
15. Pretrial Criminal Justice Research, 2013.
16. U.S. Department of Justice. Office of Public Affairs. “Department of Justice Files Statement of Interest in Clanton, Alabama, Bond Case.”
News release, February 13, 2013. Accessed October 17, 2017. https://www.justice.gov/opa/pr/department-justice-files-statement-
interest-clanton-alabama-bond-case.
17. Stack v. Boyle (November 5, 1951).

PJI Publications referenced in this report:
Improving Pretrial Justice in New Jersey
Questions About Pretrial Assessment
Where Pretrial Improvements are Happening
To access these and other useful resources, visit the University of Pretrial at www.pretrial.org/up/
Appendix

Pretrial
Use of Validated
Pretrial
Elimination
Bonus Point
17
Overall
Detention Rate of Money Bail
Assessment

% Living
Rate per % Living in in county Assessment
10,000 Score county using Score that has Score used, Score Score Grade
residents assessment eliminated no money
money bail
Alabama 19.4 1 0 0 0 0 No 0 1 F
Alaska 20.1 0 0 0 0 0 No 0 0 F
Arizona 16.7 1 100 4 0 0 No 0 5 B
Arkansas 13.1 1 0 0 0 0 No 0 1 F
California 11.7 1 2.9 1 0 0 No 0 2 D
Colorado 10.5 1 87.4 4 0 0 No 0 5 B
Connecticut 10.2 1 100 4 0 0 No 0 5 B
Delaware n/a n/a 0 0 0 0 No 0 0 I
Florida 17.6 1 8.9 1 0 0 No 0 2 D
Georgia 19.5 1 0 0 0 0 No 0 1 F
Hawaii 6.8 2 0 0 0 0 No 0 2 D
Idaho 11.5 1 0 0 0 0 No 0 1 F
Illinois 10.8 1 46.2 2 0 0 No 0 3 C
Indiana 15.7 1 0 0 0 0 No 0 1 F
Iowa 9.9 2 0 0 0 0 No 0 2 D
Kansas 14.1 1 20.1 1 0 0 No 0 2 D
Kentucky 16.1 1 100 4 0 0 No 0 5 B
Louisiana 29.9 0 8.4 1 0 0 No 0 1 F
Maine 5.1 2 0 0 0 0 No 0 2 D
Maryland 12.8 1 27.6 2 0 0 No 0 3 C
Massachusetts 7.7 2 0 0 0 0 No 0 2 D
Michigan 6.8 2 27.2 2 0 0 No 0 4 C
Minnesota 7 2 22.3 1 0 0 No 0 3 C
Mississippi 17.7 1 0 0 0 0 No 0 1 F
Missouri 14.6 1 0 0 0 0 No 0 1 F
Montana 12.8 1 0 0 0 0 No 0 1 F
Nebraska 13.1 1 0 0 0 0 No 0 1 F
Nevada 17.9 1 89.1 4 0 0 No 0 5 B
New Hampshire 8.4 2 0 0 0 0 No 0 2 D
New Jersey 14 1 100 4 100 1 Yes 1 7 A
New Mexico 21.8 0 32.5 2 0 0 No 0 2 D
New York 9.1 2 43.2 2 0 0 No 0 4 C
North Carolina 15.5 1 10.4 1 0 0 No 0 2 D
North Dakota 11.5 1 0 0 0 0 No 0 1 F
Ohio 9.1 2 29.3 2 0 0 No 0 4 C
Oklahoma 13.4 1 0 0 0 0 No 0 1 F
Oregon 8 2 19.5 1 0 0 No 0 3 C
Pennsylvania 15.9 1 9.6 1 0 0 No 0 2 D
Rhode Island 7.4 2 100 4 0 0 No 0 6 B
South Carolina 17.5 1 0 0 0 0 No 0 1 F
South Dakota 13.2 1 34.3 2 0 0 No 0 3 C
Tennessee 16.4 1 0 0 0 0 No 0 1 F
Texas 18 1 16.5 1 0 0 No 0 2 D
Utah 9.3 2 100 4 0 0 No 0 6 B
Vermont 7 2 0 0 0 0 No 0 2 D
Virginia 13.8 1 85.3 4 0 0 No 0 5 B
Washington 9.1 2 3.4 1 0 0 No 0 3 C
West Virginia 11.7 1 0 0 0 0 No 0 1 F
Wisconsin 10.1 1 25.7 2 0 0 No 0 3 C
Wyoming 16.1 1 0 0 0 0 No 0 1 F